Friday, June 17, 2011

The U.S. Supreme Court Upholds the “Legal Arizona Workers Act”

The United States Supreme Court has found that the Legal Arizona Workers Act (LAWA) is constitutional.  Chamber of Commerce of the United States v. Whiting, No. 09-115 (May 26, 2011). The LAWA imposes sanctions on employers who knowingly or intentionally hire unauthorized workers, and also requires employers to participate in a federal “E-Verify” program.

LAWA applies to Arizona employers of all sizes. Under the Act, the Attorney General or County Attorney must investigate any and all complaints made against an employer relating to the employment of unauthorized aliens. The Act provides for a progressive penalty system (depending on whether the violating employer “knowingly” or “intentionally” employed the unauthorized alien, as these terms are defined in the Act). The other major provision of the Act requires that all Arizona employers use the federal E-Verify system to verify the employment eligibility of all new hires. At issue in this case was whether the LAWA was preempted by the federal Immigration Reform and Control Act of 1986 (IRCA) and/or the federal Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).

The Supreme Court found that the LAWA did not conflict with the IRCA. According to the Court, while the IRCA prohibits states from imposing civil or criminal sanctions on employers that employ unauthorized aliens, the IRCA specifically preserves state authority to impose sanctions through licensing and similar laws, and the Court found that the LAWA falls within this “licensing” clause. The Court also concluded that there was no issue with regard to the IIRIRA. The Court found that, although the IIRIRA restricts the federal government’s ability to require the use of E-Verify, that restriction does not affect what the states may do.

The Supreme Court’s ruling means that Arizona employers should be enrolled in the E-Verify program and it is also a good time to review hiring policies and procedures to ensure compliance with the LAWA’s other requirements. Now that the Supreme Court has deemed the LAWA constitutional, it is highly likely that other states may follow suit and employers throughout the country should keep an eye out for similar legislation.

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